They involve Dustin Flynt, nephew of Hustler publisher Larry Flynt, who faces a drug possession charge, and Jimmy Elliott, a gas station employee who allegedly stole about $1,200 from his em ployer and then left on a trip to Florida.

The question is whether those accused of such Class D felonies  punishable for one to five years in prison  can be offered diversion without a recommendation from commonwealth attorneys.

Everybody saw it coming, Judge Stephens said. The statute is pretty broad and general. (But) it came up faster than most ... thought it would.

A 1998 state crime bill required diversion for all circuit courts. Kenton Circuit Court began implementing its program in December. Since then, about 75 offenders have been offered diversion.

They will escape a criminal record if they meet the terms of their diversion agreements, which can entail community service, anger-management courses, other forms of counseling or substance-abuse treatment.

The rules for Kenton Circuit Court's program stress that the circuit court cannot act on a request for diversion absent a recommendation from a prosecutor.

Mr. Flynt filed an appeal with the Kentucky Court of Appeals after Judge Bartlett upheld those rules and said he wouldn't consider diversion for Mr. Flynt without recommendation from the commonwealth attorney's office.

In Mr. Elliott's case, it was the commonwealth attorney's office that filed an appeal with the state appellate court. The arbiter in his case, Judge Stephens, thinks Mr. Elliott should be eligible for diversion, despite an opposing recommendation from the commonwealth attorney's office.

The Kentucky Court of Appeals is asking the Kentucky Supreme Court for guidance.

Judge Stephens said the
source of his contention is that the commonwealth attorney's office has said no one who steals from his employer is eligible for diversion. However, the judge said, an employer who steals from his employees would be eligible.

He also thinks that judges should have final say in any deal worked out between prosecutors and defendants.